Congress in the War on al Qaeda

by Glenn Sulmasy

Thanks to Chris for inviting me to participate in this great “roundtable.” It has been wonderful to read the myriad perspective already. Ben’s book is thoughtful and pushes the country in the direction it needs to go: policy makers need to begin to study, debate and perhaps embrace new ways to approach the War on al Qaeda. His book is a catalyst for such debate…as evidenced within this blog.

The discussion over whether this is a war or not seems to have been answered by Ben earlier today. But I think I would go a bit further…it is an armed conflict although one, as Ben notes, we are not accustomed to fighting. Thus, the problem with labeling the conflict as one or the other paradigm (war or law enforcement) triggers completely separate legal regimes. That is where we have been for the past seven years. The fact is the fight against international terrorism is an “armed conflict” — we have respnded to the attacks of 9/11 with armed force; and clearly the battles raging in Afghanistan (and now in Iraq against AQI) are indicium of war. But we also now use the FBI, the CIA and other law enforcement entities more than we ever have before – even in “combat”…There is a real mix of law and war in this conflict. As I see it, the key point of wisdsom in Ben’s book is that neither legal regime will work if strictly applied. There is a real need to embrace a third way, or a hybrid model. In my view, as many of you know, that is something worthwhile to at the minimum, have a commission chartered to review and seriously study.

Ben kicked off the discussion yesterday with a question if there was anyone who believed the executive retained the authority to employ military commissions. I answer that with a clear yes. During armed conflict, throughout our history, that has been the case…it has been a creature of command and executive power – particularly when used against unlawful belligerents during a time of armed conflict. William Winthrop, whom the Supreme Court labeled as the Blackstone of Military Law, described even courts-martial as “…intrumentalities of the executive power, provided by Congress for the President as Commander in Chief, to aid him in properly commanding the army and the navy, and discipline therein.” The military commission, as we know, is a unique tribunal and can be, and has been, used to try unlawful belligerents in a time of war. The UCMJ provides the authority for their use. Distinct from courts-martial, rather than being focused internally for maintaining discipline and order of the troops, the military commissions are focused externally to the enemy as a means of waging successful war by punishing and deterring offenses against the laws of war. As such, there is some sense that the Article II powers of the President, during armed conflict, afford her this authority. The Congress has vested the authority within the UCMJ, and I would suggest purposefully in rather broad fashion, to ensure the executive has the authority necessary to hold these hearing as she deems fit.

Case law has also supported this being the pregogative of the President in myriad cases, not the least of which was Ex Parte Quirin. There are numerous other cases, including Madsen v. Kinsella, Yamashita and others supporting the executive’s authority in this area. Additionally, the customary practice, since the founding, has been to afford the executive (or operational commanders) such authority in times of war. No less than Washington, General Jackson, General Scott, President Lincoln and the progressive Franklin D. Roosevelt understood this to be the case and utilized the commissions in this fashion.

Having said the executive has the authority to order the use of military commissions, that is not necessarily the case in the current armed conflict with al Qaeda. As a result of the unique nature of the war we are fighting, Congressional input and guidance is more than necessary. The realities of fighting an enemy with whom we can not negotiate with, who flouts the laws of war as doctrine, and does not represent a nation, muddies any traditional analysis or reasoning. Additionally, the “War on Terror” does not offer any real, concrete opportunity to declare “victory.” Thus, the length of the conflict could indeed be generational. As such, the potential for abuse of war time powers by both the military as well as the civilian leadership increases dramatically in this conflict. The inclusion of Congressional input and guidance becomes all the more important in crafting laws for the long war. the political branches must work together if we are ever to achieve real consensus (both domestically and internationally) and produce any tangible examples of success.

Thus, although the Executive has, and should retain, broad authorities in war (including the authority to order military commissions in traditional armed conflict), the War on al Qaeda offers no such luxury and again, as Ben’s book emphasizes, requires policy makers to review actions being taken from an entirely different perspective.

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